Madras High Court

The Assistant Elementary ... vs The Presiding Officer on 10 June, 2022

                                                                         W.A.No.1026 of 2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED:        10.06.2022

                                                     CORAM :

                        THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
                                                         AND
                                       THE HON'BLE MRS.JUSTICE N.MALA
                                              W.A.No.1026 of 2022
                                           and C.M.P.No.6529 of 2022


                     1.The Assistant Elementary Educational Officer,
                        Thandarampet, Tiruvannamalai.

                     2. The District Educational Officer,
                        Thiruvannamalai.

                     3. The Chief Educational Officer,
                        Thiruvannamalai.                                 .. Appellants

                                                            vs


                     1. The Presiding Officer,
                        Additional Labour Court,
                        Vellore.

                     2. R.Chandra                                        .. Respondents


                     Prayer: Appeal filed under Clause 15 of the Letters Patent against the
                     order dated 02.11.2018 made in W.P.No.1036 of 2016 on the file of
                     this Court.



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                     Page 1 of 12


https://www.mhc.tn.gov.in/judis
                                                                              W.A.No.1026 of 2022




                                  For the Appellants    :     Mr.P.Muthukumar
                                                              State Govt. Pleader
                                                              assisted by Mr.Alagu Gowtham,
                                                              Govt.Advocate

                                  For the Respondents   :     Mr.S.N.Ravichandran
                                                              For R.2

                                                            *****

                                                        JUDGMENT

(Judgment of the Court was delivered by the Hon'ble Chief Justice)

The writ appeal has been filed to assail the judgment of the

learned Single Judge dated 02.11.2018 whereby the writ petition

preferred by the writ appellants to challenge the order of the Labour

Court under Section 33C(2) of the Industrial Disputes Act, 1947,

was dismissed.

2. It is a case where the non-appellant employee made an

application before the Labour Court invoking Section 33C for

computation of benefit pursuant to the G.O. issued by the

Government in G.O.No.385, Finance (Salary) Department, dated

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01.10.2010. The benefit claimed by the non-appellant employee

pursuant to the G.O. for scale of pay of Rs.1300-3000+Rs.300/-

was allowed by the Labour Court. The objection regarding the

maintainability in reference to the status of the employee and the

entitlement of the benefit claimed by the employee was raised in

the light of the fact that the employee was only a part-time

employee thus is not covered by the G.O. dated 01.10.2010. The

Labour Court, however, granted the benefit holding the employee to

be entitled to the benefit claimed therein. The challenge to the

order of the Labour Court before the High Court failed as the writ

petition of the writ appellants was dismissed.

3. The learned counsel appearing for the State submits that

ignoring the status of the employee to be a part-time employee and

for that reason, the G.O. dated 01.10.2010 was not even

applicable, the benefit claimed by the employee was computed.

The learned Single Judge ignored the aforesaid and more

specifically, the limited jurisdiction vested in the Labour Court under

Section 33C of the Act of 1947. An application to seek computation

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can be made only when it is flown from an award or settlement or

under the provisions of Chapter V-A or V-B and entitled to receive

the benefit which is capable of being computed in terms of money.

The computation aforesaid would be permissible under Section

33C(2) of the Industrial Disputes Act, 1947.

4. In the instant case, there was no award or settlement or

under the provisions of Chapter V-A or V-B, yet the benefit was

computed by the Labour Court going beyond the limited jurisdiction

vested in it. It could not adjudicate the issue of entitlement of the

employee rather it can be done only when a dispute is raised

invoking Section 10 of the Industrial Disputes Act, 1947. It is also

ignoring the fact that the G.O. dated 01.10.2010 was meant for

daily-rated employees apart from those who are paid on

consolidated basis and not for the part-time employees. Yet, going

beyond the G.O. referred to above, the benefit was computed by

the Labour Court.

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5. The learned Single Judge has ignored all the aspects

referred to above while dismissing the writ petition and even to take

into consideration the limited jurisdiction of the Labour Court under

Section 33C of the Act of 1947. The prayer is, accordingly, to set

aside the order of the Labour as well as of the learned Single Judge.

6. The learned counsel for the respondent non-appellant

employee submits that the application under Section 33C(2) was

rightly maintained to seek computation of benefit when the same

benefit was extended to similarly placed employees and therefore,

the learned Single Judge rightly dismissed the writ petition

preferred by the writ appellants. The prayer is not to cause

interference in the order because the benefit claimed by the

employee was flown from the G.O. dated 01.10.2010 and thus, the

prayer is to dismiss the appeal.

7. We have considered the rival submissions of the parties and

perused the records.

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8. It is not in dispute that an application under Section 33C

(2) of the Industrial Disputes Act, 1947 was preferred by the non-

appellant employee to seek computation of the benefit pursuant to

the G.O. dated 01.10.2010 permitting the scale of pay at Rs.1,300-

3000+Rs.300/-. The G.O. aforesaid was applicable to daily-rated

employees apart from those who are paid on consolidated basis. It

was not applicable to the part-time employees, thus, the first issue

to be addressed is as to whether the G.O. dated 01.10.2010 could

have been applied and apart from that, whether the Labour Court

was having jurisdiction to adjudicate the issue aforesaid on an

application under Section 33C(2) of the Act of 1947.

9. The law on the issue is well settled that computation of the

amount can be made when it is arising out of an award or

settlement or under the provisions of Chapter V-A or V-B. It is an

admitted case that the claim to compute the benefit was not

pursuant to any award or settlement, but pursuant to a G.O. In

view of the above, the application under Section 33C was not even

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maintainable. If, for the sake of argument, it is presumed to be

maintainable, the issue would further be as to whether the G.O.

dated 01.10.2010 makes a reference to the part-time employees.

The answer can be easily given in reference to the G.O. which does

not make a reference of part-time employees, but only the daily-

rated employees and those who are paid on consolidated basis to be

extended the benefit of regular pay scale, which cannot be made

applicable to a part-time employee working for any duration varying

from one hour to few hours but not for the whole day.

10. In view of the above, the learned Single Judge could have

caused interference in the order passed by the Labour Court. The

Labour Court has failed to take note of the provisions of Section

33C(2) while adjudicating the application. Section 33C of the

Industrial Disputes Act of 1947 is quoted hereunder for ready

reference:-

"33C. Recovery of money due from an employer.-

(1) Where any money is due to a workman from an employer under a settlement or an award or under the

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provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may

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be specified in this behalf by the appropriate Government; within a period not exceeding three months:

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case.

(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.

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Explanation.--In this section "Labour Court" includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.”

The provision aforesaid is clear in its terms as to when application can

be filed to seek computation of benefits. It cannot be where even

rights to claim the benefit is to be determined.

11. For the reasons aforesaid, we do not find the order of the

Labour Court and also of the learned Single Judge tenable and

accordingly, the impugned order dated 02.11.2018 made in

W.P.No.1036 of 2016 as also the order dated 23.12.2014 passed in

Computation Petition No.255 of 2013 by the Additional Labour

Court, Vellore are set aside. It is, however, with the liberty to the

non-appellant employee to take the remedy for the claim as made

before the Labour Court by raising a dispute under the Industrial

Disputes Act, 1947 or taking remedy before any other appropriate